2011 MBPC 40, 2011 MBPC 40

2011 MBPC 40 IN THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: An ex parte Application pursuant to Criminal Code, s. 487.05(1) by Detective R. Arndt of the Winnipeg Police Service (“Applicant”) for a warrant authorizing the taking of a bodily substance for forensic DNA analysis; _____________________________________________________________ REJECTION OF APPLICATION _____________________________________________________________ Corrected Judgment: An Erratum was filed on July 5, 2011.

The text of the Erratum is appended at the end of the reasons of the initial judgment, which is reproduced here with corrections. 1 . The evidence in this application is found in Exhibit “A” to the Information to Obtain a Warrant (“ITO”) of Applicant sworn on May 3, 2011. 2 . The ITO states Applicant’s beliefs that:

a) On the morning of November 28, 2009 a woman in distress called “911” and reported the presence in her suite of a man whom she feared (“Suspect”).

b) After the phone call Suspect sexually assaulted the woman. The assault included vaginal intercourse.

c) Police responded to the call, arriving at the apartment block at 9:58 a.m. The woman allowed them into the building and stated that Suspect, who she called by his first name, had raped her and that he was in her suite.

d) Police found Suspect in her suite. He was putting on his clothes.

e) Police arrested Suspect for sexual assault. He confirmed his identity as the person named by the woman.

f) At 10:54 a.m. the woman was brought to the Health Sciences Centre where she underwent an examination protocol. This included obtaining a vaginal swab which was provided to police.

g) Suspect was taken to the Public Safety Building . At 11:58 a.m. a video recorded interview commenced. Suspect stated that he and the woman had intercourse; he said that it was consensual and unprotected.

h) At 12:14 p.m. police obtained Suspect’s clothing as well as wet and dry penile swabs.

i) On March 14, 2010 a Royal Canadian Mounted Police laboratory reported that the vaginal swab contained the woman’s DNA and that of a male.

j) A search of the National DNA Data Bank has not identified the male DNA.

k) On April 28, 2011 Applicant was assigned as an investigator and he read the 2009 and 2010 police reports containing the facts recited above. 3 . Applicant seeks an order for a pin-prick blood sample to determine Suspect’s DNA. In doing so, Applicant deposed: “I believe that by obtaining a known sample of (Suspect’

s) blood will confirm that he is in fact the male responsible for sexually assaulting (the woman). This will provide evidence in support of charging (Suspect) with Sexual Assault on November 28, 2009.”

(Other than the parties identified in parentheses, this quote is verbatim.) 4. The DNA sample sought cannot confirm that Suspect “is in fact the male responsible for sexually assaulting” the woman. It canonly establish what Suspect has already told police: that he engaged in intercourse with the woman. 5. The ITO narrative of the sexual assault ends on November 28, 2009. The next event cited is the March 14, 2010 laboratory DNA report. The ITO contains no further information other than that Applicant read the file on April 28th of this year. 6.

Therefore Applicant has not explained how the blood sample sought today can constitute necessary “evidence in support ofcharging” Suspect. 7. The final criterion for issuing a DNA investigative warrant is that the judge must be “satisfied that it is in the best interests of theadministration of justice to do so”: Criminal Code, s. 487.05(1). Where an ITO contains no information about why, seventeen monthsafter their arrest and interview of Suspect, police are seeking “evidence in support of charging” him, how does one apply this criterion? 8. Specific guidance is found in R. v. S.A.B., 2003 SCC 60 , [2003] S.C.J.

No. 61, the Supreme Court of Canada decisionupholding the constitutionality of the Criminal Code DNA seizure provisions. Arbour J. wrote on behalf of a unanimous panel of ninejudges: “Moreover, as the Court of Appeal noted, the s. 487.05(1) requirement of showing that the warrant is "in the best interests of theadministration of justice" would prevent a judge from issuing a warrant where it is unnecessary to do so.” (para. 54) 9.

It is my view that the best interests of the administration of justice prevent the issuance of a warrant where, after the unexplainedpassage of seventeen months, there is no necessity or exigent circumstance demonstrated. 10. It is therefore ordered that:

a) This application is rejected;

b) Copies of the application will be provided to Applicant and the originals kept on file;

c) Any subsequent application for a Warrant must include a copy of this Notice of Rejection. “Original signed by” Judge R. L. Pollack May 9, 2011 R. Pollack, P.J. E R R A T U M

There is one correction in the above judgment, as follows: In paragraph 5, page 3, second sentence, beginning with “The next event cited” should read: The next event cited is the March 14, 2010 laboratory DNA report. “Original signed by” Judge R. L. Pollack July 5, 2011